Thursday, January 23, 2014

Narrow focus confuses intent

Instead of cementing human rights as a foundation stone of Australia's liberal democracy, the national curriculum confuses their history and intent.

The national curriculum primarily introduces human rights under the banner of ''Rights and freedoms'' in Year 10 history.  While the title is broad, the approach is very narrow.

According to the curriculum, human rights are approached as a post-1945 concept focusing on ''the origins and significance of the Universal Declaration of Human Rights, including Australia's involvement''.

It also focuses on the recent struggle for the rights and freedoms of indigenous Australians and the ''US civil rights movement and its influence on Australia''.

As Murdoch University legal academic Augusto Zimmermann wrote in critique of the curriculum, ''there is not a single reference to the struggles for rights and freedoms such as that which occurred during the 1688 Glorious Revolution, and afterwards by American revolutionaries (whose) whole purpose of acknowledging human rights was to protect the citizen against excessive government power''.

Without this background, human rights lack their history and also their framework.

Apart from cursory references to the Magna Carta in Year 6 history, there's no substantive discussion about the evolution of human rights and the influence of key political movements, particularly classical liberalism and enlightenment thinking.

Without it, two essential themes are not covered.

First, human rights as universal individual birthrights;  second, human rights are designed to stop the abuse of government power over the individual.

It's out of this tradition that Australia's common law rights evolved.

Similarly, it's only with this history that Australians can understand the social contract that gives government legitimacy is coupled with human rights to put a brake on its excesses.

Without this background, the national curriculum risks debasing human rights, whitewashes their classical liberal origins in favour of treaties, strips them of their sanctity and consistency and presents them as a modern legal gift of government.

There are numerous cascading problems in approaching human rights this way.  First, whatever human rights government gives, they can also take away.

Second, diluted human rights can then be superseded when they come into conflict with the policy objectives of government.

In the past 12 months there have been clear examples of how they can be compromised.

Last year, the Queensland parliament passed laws that have criminalised free association for bikies.

The last federal parliament considered introducing a state-sanctioned media regulator that would limit free speech because politicians didn't like what newspapers were saying about them.

The last federal parliament also considered laws that could restrict expressing political views in the workplace.

Third, when they're debased from protecting individuals from government abuse then any new aspiration can simply be added to the list of human rights consequently weakening their integrity.

The Victorian Charter of Rights and Responsibilities outlines this problem in practice.

Former British philosopher Isiah Berlin coined the division between human rights that protect individuals from government as ''negative liberties'' and rights that reflect aspirations for society as ''positive liberties''.

Traditional ''negative'' human rights include protecting free speech, movement, association, worship and property.  They're also principles that can be reasonably consistently exercised by individuals.

Yet the Victorian Charter elevates the worthy ''positive'' aspiration of non-discrimination to the status of human rights, despite the tension between the two different concepts.

Apart from limiting discrimination by government, non-discrimination is primarily about protecting individuals from unjust societal prejudice.

There is consistency between both ''negative'' human rights and ''negative'' non-discrimination in stopping government prejudicially discriminating access to government services and employment.

Similarly, Section 51 (xxvi) of the Constitution that allows state-imposed discrimination by giving the parliament the ''power to make laws with respect to the people of any race'' is inconsistent with negative liberties, and hence should be repealed.

But there is tension between ''positive'' non-discrimination and ''negative'' human rights.

It's impossible to protect the integrity of ''negative'' human rights when, as the Victorian Charter argues, ''every person has the right to enjoy his or her human rights without discrimination'' while also protecting the right of women to join gyms that exclude men, gays to have nightclubs that exclude heterosexuals and indigenous groups that require members have indigenous heritage.

Arguably, the whole point of free association is the right to discriminate in associating with some, but not others.

Worse, the Victorian Charter doubles down by explicitly prioritising non-discrimination ahead of human rights by stating that ''measures taken for the purpose of assisting or advancing persons of groups of persons disadvantaged because of discrimination do not constitute discrimination''.

Despite the inconsistency, achieving a society free of unjust discrimination remains a worthy goal, but we cannot ignore that when we prioritise ''positive'' non-discrimination, we are deprioritising human rights, and vice-versa.

The recent introduction of the national curriculum ensures it is not responsible for the cracks that now appear in the human rights foundations of our liberal democracy, but fixing the national curriculum will help future Australians understand human rights and also start the restoration process.

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